Copyright and blog extracts

There’s a fascinating post on copyright law in the blogosphere by Washington law professor Daniel Solove. Solove’s contention is that bloggers – with their tendency to run large extracts from news articles and the like, and even their use of copyrighted photography copied onto their own servers – are playing a very dangerous game of chicken with the concept of fair use. Solove reckons this may lead mainstream media to start clamping down.

Will this inevitably happen? Will bloggers have to start studying the complexities of the fair use doctrine? Will mainstream media entities adopt an RIAA-style approach? One strategy could involve bringing suits and then offering to settle for a substantial sum, but much less than the cost of fighting the suit. Even if the fair use issue were debatable, it might make sense for the blogger just to settle rather than risk a loss in the case (and much greater damages) and go through the expense of litigating (let alone the extensive time and emotional toll that such litigation might take). A more vigorous copyright enforcement will certainly not kill the blogosphere, but it could change the way people blog. With blogging getting bigger and more profitable every day, will copyright suits become the wave of the future?

I think there will inevitably be some of this going forward, but I’d make some points:

Mainstream media (at least, mainstream media like the Guardian) are getting increasingly sophisticated in their understanding of what the blogosphere does for them in terms of inbound links, new audience and overall search engine juice. For every person inside an online newspaper shouting about copyright violations, there’s probably someone else pushing for more inbound links, not fewer.

Solove uses the example of stock photography companies cracking down as an indication that we might be in for some copyfights. But pictures are different from text, profoundly so. As a blogger, I can’t show a fragment of a picture, and I can only rarely link to a more complete picture. With text, this isn’t so.

Solove says that bloggers tend to run quite long extracts of content from mainstream media because, to date, many MSM sites have taken content down after a period of time, either to remove it completely or to put it behind some kind of paywall. Again, I’d point out that mainstream media’s getting a bit smarter about this. We’re getting the value of permanence.

None of which is to say that there won’t be copyfights in future, particularly from premium brands with subscription models (like WSJ and the Economist). As for the rest of us, we’re going to be chasing audience and eyeballs and ad inventory for quite some time. So link (and extract) away. Within reason, of course….